International Court of Justice (ICJ)
- Jurisdiction — International courts and tribunals, powers — International organizations, practice and procedure
Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.
1. Early Inter-Allied Discussions
1 After the outbreak of World War II in September 1939 had put an end to the active life of the Permanent Court of International Justice (PCIJ), it was not until 1942 that among the Western Allies, interest in the future international organization began to revive and with it, interest in the future of a universal judicial organ along the lines of the PCIJ.
2 In 1942, several public statements were made about the future of an international judicial organ. On 23 July 1942, United States Secretary of State Cordell Hull gave public expression of official US approval of the establishment or re-establishment of an international court after the war—an interesting comment in the light of the US Senate vote of 1935 (para. 10 Permanent Court of International Justice [PCIJ]). A few days later, on 29 July, British Foreign Secretary Anthony Eden referred to Hull’s statement and repeated a similar thought. Neither referred specifically to the PCIJ for reasons that will appear later in this article. In September 1942, the Inter-American Juridical Committee submitted formal recommendations concerning post-war international organization in the political and judicial spheres. It recommended that the PCIJ should be designated as the court of a new organization while maintaining continuity with the pre-war PCIJ and that its jurisdiction should be compulsory. These statements indicate that in the post-war planning for a new world organization that would take the place of the League of Nations (‘League’), the future of an international judicial organization was one of the issues that required full attention. The Atlantic Charter (1941), the Washington Declaration of the United Nations of 1 January 1942, and above all, the Four Nations Declaration on General Security issued in Moscow (‘Moscow Declaration’) by the US, the United Kingdom, the Union of Soviet Socialist Republics, and China on 30 October 1943 set in motion the process of establishing at the earliest practicable date a general international organization based on the principle of the sovereign equality of all peace-loving States and open for membership to all such States. The latter declaration made no mention of an international court.
3 Matters were carried a stage further early in 1943 when the British Government convened an informal committee of experts (‘Informal Inter-Allied Committee’) to examine the question of the Court on the assumption that an international court in some form would be needed in the future. Expert representatives from Belgium, Canada, Czechoslovakia, Greece, Luxembourg, the Netherlands, New Zealand, Norway, and Poland and the French Committee of National Liberation attended this committee, which met under the chairmanship of Sir William Malkin. On 10 February 1944, it published its report. After a close examination of the Statute of the PCIJ (‘PCIJ Statute’), the committee reached the general conclusion that the PCIJ Statute had worked well and should be retained as the general structure of the future court. Whether the PCIJ should continue in existence with the necessary modifications in its statute or whether a new court should be established by means of a new statute based on the existing one was found to be a question of high policy not within the committee’s mandate.
2. The Dumbarton Oaks Proposals (1944) and the Washington Committee of Jurists (March–April 1945)
4 After a series of complex negotiations, the four Sponsoring Powers (as they were now designated)—China, the USSR, the UK, and the US—followed up the Moscow Declaration on 9 October 1944 with the Proposals for the Establishment of a General International Organization commonly known as the Dumbarton Oaks Proposals (Dumbarton Oaks Conference ). This was the broad outline of the future international organization. It included ‘an international court of justice’ as one of the principal organs of the future organization and proposed that justiciable disputes should normally be referred to that court (Judicial Settlement of International Disputes). Chapter VII Dumbarton Oaks Proposals carried the title ‘An International Court of Justice’. It proposed that there should be an international court of justice which should be the principal judicial organ of the new organization. It would be constituted and function in accordance with a statute which should be annexed to and form part of the charter of the organization. That statute could be either the PCIJ Statute suitably modified or a new statute for which the PCIJ Statute should be used as a basis. All members of the organization would ipso facto be parties to that statute, and the conditions under which States not members of the organization may become parties to the statute were to be determined in each case by the General Assembly upon recommendation of the Security Council. These proposals accepted the principle of a close organic connection between the new court and the new organization contrary to the opinion of the Informal Inter-Allied Committee. They also showed a tentative inclination to retain the PCIJ Statute as the constituent element of the new court. The use in the Dumbarton Oaks Proposals of lower case initials when referring to the Court symbolized that, at the time, the precise status of the Court and whether it was to be a continuation of the PCIJ or a new court was undecided.
5 The four Sponsoring Powers accepted that before convening a general conference to consider the Dumbarton Oaks Proposals, there should be further examination of the statute of the proposed court. On 24 March 1945, the US Government, on behalf of the four Sponsoring Powers, invited the other United Nations (at that time, the name of the war-time fighting coalition against the Axis Powers) to a committee of jurists to meet in Washington (‘Washington Committee of Jurists’) on 9 April in order to prepare the draft of a new statute. Forty-four States attended the meeting (only India and South Africa declined to attend). GH Hackworth, the legal adviser of the US State Department, was elected chairman and J Basdevant of France, rapporteur.
6 The limited task of the Washington Committee of Jurists was to prepare recommendations as experts. The committee was not empowered to deal with any of the political issues which existed at that time in connection with the proposed court. The committee took the PCIJ Statute as the basis for its work and, after detailed scrutiny, completed its task with a detailed report mainly of a technical nature on the results of its examination. The major questions left open referred to the place of the new court in the new international organization and its role in the central question of the maintenance of international peace and security and the settlement of international disputes (Peaceful Settlement of International Disputes). Two subsidiary matters arose out of this: a) whether it was necessary to recall the present or possible existence of other international courts, and b) whether to consider the Court as a new court or as a continuation of the PCIJ. Other open questions related to the manner of the nomination and election of the members of the Court and the question of compulsory jurisdiction. That problem was to assume a new form because the real issue behind it was whether acceptance of compulsory jurisdiction was to be a condition for membership in the new organization. In turn, that matter raised the question of whether the organizational structure for the pacific settlement of international disputes was to contain elements of compulsion.
3. The San Francisco Conference (April–June 1945)
7 The report of the Washington Committee of Jurists was transmitted to the San Francisco Conference on International Organization (in session from 25 April to 26 June 1945) where it formed the basic text for the discussions on the Court. The major part of the work was performed in Technical Committee IV/I and its four subcommittees, namely, Subcommittee IV/I/A on the continuity of the international court and related problems, Subcommittees IV/I/B and IV/I/C on the nomination and election of judges, and Subcommittee IV/I/D on compulsory jurisdiction. Other conference committees that handled part of the issues relating to the Court were Committee I/2 responsible for the question of the principal organs of the new organization; Committee II on the General Assembly, including its powers in relation to advisory opinions; Committee III/1 on the participation of the Security Council in the election of the judges; and Committee III/2 on the employment of the advisory competence by the Security Council in the pacific settlement of disputes.
8 The result of the work of the conference in so far as the Court is concerned is found in the following provisions of the United Nations Charter (‘UN Charter’ [adopted 26 June 1945, entered into force 24 October 1945] 145 BSP 805) together with the Statute of the International Court of Justice (‘ICJ Statute’), which is annexed to and forms part of the UN Charter: Arts 7 (1) (on the principal organs of the organization), 36 (3) (on the pacific settlement of disputes), and 92–96 (on the ICJ). These, together with Art. 1 ICJ Statute, set out the constitutional position of the ICJ as a principal organ (Art. 7 (1) UN Charter) and the principal judicial organ (Art. 92 UN Charter) of the United Nations (UN), while preserving the right of members of the UN to entrust the solution of their differences to other tribunals (Art. 95 UN Charter). The ICJ Statute was based on and is a slightly amended version of the PCIJ Statute as it had been revised in 1936, adapted to the UN. It contains two provisions, Arts 36 (5) and 37 ICJ Statute, regarding the transfer to the ICJ of jurisdiction vested in the PCIJ as of the date of the entry into force of the UN Charter (International Organizations or Institutions, Succession), and two new provisions, Arts 69 and 70 ICJ Statute, on the amendment of the ICJ Statute independently of amendment of the UN Charter. Above all, the conference finally decided on the creation of a new court while maintaining continuity with the PCIJ. The real distinguishing feature that led to this conclusion was the active participation of the US and the USSR in the sponsorship of the inclusion of the ICJ among the principal organs of the UN, a reversal of the position of these two countries towards the PCIJ. The San Francisco Conference on International Organization completed its work on 26 June 1945. The UN Charter (with the ICJ Statute) received the necessary ratifications and entered into force on 24 October 1945.
9 By and large, the ICJ Statute is a faithful reproduction of the PCIJ Statute with only minimal changes. This corresponds to the general thrust of the earlier work on the problem, including the Washington Committee of Jurists. The principal changes in the PCIJ Statute, apart from its adaptation to the appropriate provisions of the UN Charter, concern the system for the election of the members of the Court, the chambers of the Court, and the provisions relating to advisory opinions. However, the Court was established as a new court while maintaining continuity with the PCIJ. The institutional changes were, in the course of time, to bring about more basic shifts in the way in which the new court dealt with its cases. This process is most marked in connection with the Court’s competence to give advisory opinions, which today is very different from what it was in the days of the League and the PCIJ. The membership of the Court was retained at 15, the same number of elected judges as had constituted the PCIJ. They serve for a period of nine years and may be re-elected.
10 Regarding the system of elections, the system of simultaneous election in the Security Council (United Nations, Security Council) and the General Assembly (United Nations, General Assembly) was retained (in the Security Council, an absolute majority of its members is required under Art. 10 (2) ICJ Statute, without any distinction between its permanent and non-permanent members). However, Art. 13 ICJ Statute introduced a system of staggered partial elections in place of a general election every nine years, as had been the position under the PCIJ Statute. Of the 15 judges elected at the first election, the terms of five were to expire at the end of three years and of another five at the end of six years, with the Secretary-General (United Nations, Secretary-General) drawing by lot immediately after the first election those who will serve for three and six years.
11 The court was not given any special place in the general structure of the machinery for the maintenance of international peace and security established by the UN Charter. Art. 33 UN Charter imposes a general obligation on the parties to a dispute, the continuance of which is likely to endanger the maintenance of international peace and security, to seek, first of all, a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their choice (see also Conflict Prevention; Good Offices; Peace, Proposals for the Preservation of). Conflict Prevention). Under Art. 36 (3) UN Charter, in making recommendations for the peaceful settlement of a dispute, the Security Council ‘should also take into consideration that legal disputes should as a general rule be referred by the parties to the International Court of Justice, in accordance with the provisions of the Statute’.
12 The conference did not accept the Dumbarton Oaks Proposal for the integration of the advisory competence with the general structure for the pacific settlement of international disputes. Art. 96 (1) UN Charter allows the General Assembly or the Security Council to request the ICJ to give an advisory opinion on any legal question. Art. 96 (2) UN Charter empowers other organs of the UN and the specialized agencies (United Nations, Specialized Agencies) which may, at any time, be so authorized by the General Assembly to request advisory opinions ‘on legal questions arising within the scope of their activities’. This is paralleled by Art. 65 (1) ICJ Statute by which the Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the UN Charter to make such a request. This has increased the number of organs of international intergovernmental organizations that may be authorized to request advisory opinions in comparison with the position under the Covenant of the League ([Signed 28 June 1919, entered into force 10 January 1920]  225 CTS 195). It also confirms that the Court has discretion whether to give an advisory opinion following the interpretation that was given by the PCIJ to the corresponding provision in Art. 14 Covenant of the League (with its difference between the English and French texts of that instrument).
13 In both these innovations, while the language of the UN Charter follows closely the language of the relevant provisions of the Covenant of the League or of the PCIJ Statute, the practice that has developed over a much longer time span in the UN has produced results that differ from what was current in the days of the League.
14 Another major change in the ICJ Statute concerns the chambers of the Court and the introduction of a new type of ad hoc chamber as described in Sec. B.4. below.
15 Since 1968, the Court has submitted an annual report to the General Assembly. The General Assembly does not discuss the substance of this report but simply takes note of it. It is usually introduced by the president of the Court who, at the same time, addresses the Sixth (Legal Affairs) Committee of the General Assembly (United Nations, Sixth Committee).
4. The Inauguration of the New Court
16 The next phase commenced with the work of the UN Preparatory Commission. This was an ad hoc body consisting of all the signatories of the UN Charter which was entrusted with the organization of the first sessions of the principal organs, including the Court. Its main function for the Court was to set in motion the procedure for the first election of all 15 members of the Court. The commission decided that the first election would be held during the first session of the General Assembly, that is, towards the beginning of 1946. Accordingly, the first election was held in the General Assembly and the Security Council on 6–9 February 1946, the term of office of all the judges being reckoned to commence on 6 February. Since then, that is the date for the commencement of the term of office of all judges elected at the regular triennial election of one third of the members of the Court. Under Art. 13 (3) ICJ Statute together with Art. 33 Rules of the Court of the ICJ (‘ICJ Rules’; International Court of Justice, Rules and Practice Directions), members of the Court who have been replaced following the termination of their term of office shall continue to sit until the completion of any phase of a case in respect of which the Court convenes for the oral proceedings before the date of the replacement. This does not apply to a member of the Court who is also at the time a member of an ad hoc chamber. That person continues to sit in the chamber until the termination of the case for which the chamber was established, without being a member of the Court.
17 At the first election, the absolute majority of votes required in the General Assembly for election was 26 and in the Security Council, six (later increased to eight). Among the judges elected were two members of the PCIJ at the time of its dissolution (including the president, J Gustavo Guerrero of El Salvador) and two who appeared before the PCIJ as counsel. This facilitated the transition from the old court to the new. The result of the election was the first indication of the fundamental change in the composition of the international society that was to come about following World War II and later in the 20th century as a result of decolonization and the dissolution of the USSR (see also Russia; Cold War [1947–91]). Furthermore, at that time, the UN consisted only of States that were on the Allied side during that war; no neutral States and no enemy States (before any of the Peace Settlements after World War II had been effected). Following that election, the Court as composed in 1946 consisted of six judges from what came to be known as the Western Europe and Others States, four from Latin America, three from Eastern Europe, one from northern Africa (a Muslim judge), and one from China. Each of the permanent members of the Security Council had a judge of its nationality, and it is widely accepted that should they wish so, each one of the five permanent members of the Security Council may have a member of the Court of its nationality within the group allocation of seats. This geographical distribution of seats signified the end of the majority of West European judges, based on either the Anglo-American common law or the civil law heritage as had characterized the PCIJ. Of significance is the presence of one judge from Egypt representing the Muslim legal system and three judges representing the new Socialist-Marxist legal system as practised in Eastern Europe at that time. Following the last partial election in 2005 of five members of the Court where the absolute majority of votes required in the General Assembly for election had risen to 96, the Court as of 6 February 2006 is composed of three judges from Asia, three from Africa, five from Western Europe and Others, and two each from Latin America and Eastern Europe. Three of these judges represent the Muslim legal system.
18 The new court met informally soon after the election to make arrangements for its beginning. It held its formal inaugural session at the Peace Palace in The Hague on 18 April 1946. It received its first case, the Corfu Channel Case (United Kingdom v Albania) (Corfu Channel), on 22 May 1947.
5. The Multiplicity of International Courts and Tribunals
19 From the inauguration of the PCIJ in 1922 until 1996, the PCIJ and, following it, the ICJ, were the only existing standing international courts with universal jurisdiction over all disputes submitted to it by eligible States. At the same time, other ad hoc international arbitrations and many types of claims tribunals came into existence (Mixed Claims Commissions), some established by the 1919 Peace Treaties (Peace Treaties after World War I; Versailles Peace Treaty ) and others by the Italian Peace Treaty of 1947 (Conciliation Commissions Established Pursuant to Art. 83 of the Peace Treaty with Italy ) and the Peace Treaty with Japan (1951). In addition, there are human rights courts (eg African Court on Human and Peoples’ Rights [ACtHPR]; European Court of Human Rights [ECtHR]; Inter-American Court of Human Rights [IACtHR]) to which individuals have access. Art 1. PCIJ Statute provided that the Court would be in addition to the Permanent Court of Arbitration (PCA) organized by the Hague Conventions of 1899 and 1907 (Hague Peace Conferences of 1899 and 1907), and Art. 95 UN Charter, as discussed above, kept open the option of members of the UN to entrust the solution of their differences to other tribunals. In 1996, the International Tribunal for the Law of the Sea (ITLOS), established under Arts 279–99 and Annex VI UN Convention on the Law of the Sea of 1982 ([concluded 10 December 1982, entered into force 16 November 1994] 1833 UNTS 397; Law of the Sea; Law of the Sea, Settlement of Disputes; Implementation Agreements), came into existence. The ITLOS has a wide jurisdiction to settle disputes between States arising out of the UN Convention on the Law of the Sea and other related treaties. It also has jurisdiction or is otherwise open to access by individuals both in connection with the deep-sea mining provisions of the UN Convention on the Law of the Sea (Arts 133–91, Annexes III–IV) and for the prompt release of vessels allegedly detained in violation of Art. 292 UN Convention on the Law of the Sea. Some of the tribunal’s jurisdiction is ‘compulsory’ in the sense that it derives from the UN Convention on the Law of the Sea itself. In 2004, the International Criminal Court (ICC) established under the Rome Statute of 1998 ([17 July 1998, entered into force 1 July 2002] 2187 UNTS 3) came into existence. While in one sense the ICC does not compete in any way with the ICJ since it is concerned with exercising criminal jurisdiction over individuals, its jurisdiction may overlap or collide with that of the ICJ. The existence of these and other courts and tribunals has led to concern in some circles that the ongoing proliferation of international courts and tribunals with sometimes overlapping or colliding jurisdictions may give rise to or hasten the fragmentation of international law.
20 The risk of fragmentation of international law through the multiplicity of international courts and tribunals with overlapping or colliding jurisdiction, while not serious, may be aggravated so long as there is no established international machinery to determine possible conflicts of jurisdiction or competence (International Courts and Tribunals, Multiple Jurisdictions; International Criminal Courts and Tribunals, Complementarity and Jurisdiction). Here, it is to be noted that while Art. 92 UN Charter designates the ICJ as the principal judicial organ of the UN, there is no adumbration of that idea and no formal hierarchy of courts and tribunals within the UN system. However, despite the absence from general international law of any rule of binding judicial precedents (Stare decisis), other international courts and tribunals generally follow the ICJ’s reasoning and conclusions where relevant and applicable. Any international court or tribunal that fails to heed the ICJ’s decisions would rapidly lose the confidence of its clientele.
B. Organization of the Court
1. The Composition of the Court
21 Under Art. 2 ICJ Statute, the Court shall be composed of a body of independent judges, elected regardless of their nationality from among persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial office, or are jurisconsults of recognized competence in international law (International Courts and Tribunals, Judges and Arbitrators). Art. 3 ICJ Statute provides that the Court shall consist of 15 members, no two of whom may be nationals of the same State. They are elected by the General Assembly and the Security Council. To be elected, a candidate has to receive at least an absolute majority of votes in each electoral organ. Under Art. 9 ICJ Statute, the electors shall bear in mind at every election not only that the persons to be elected should individually possess the qualifications required but also that in the body as a whole, the representation of the main forms of civilization and of the principal legal systems of the world should be assured. Leaving aside the antiquated reference to the ‘main forms of civilization’, which was a 19th century catch-phrase covering essentially the European system of government and of law, the expression ‘the principal legal systems of the world’ is a refined alternative to the expression ‘equitable geographical distribution’ widely used to designate the overall composition of other organs, principal and subsidiary, of an international organization, which are not composed of the total membership of the organization in question. This requirement was not met in the PCIJ which was excessively European in its composition. The ICJ has, over the years, but especially since 1966, come closer to meeting this requirement. This has been achieved first by the election of one Muslim judge in 1946 and, since then, by the gradual reduction in the number of European and Latin-American judges in favour of judges from other parts of the world, especially Asia and Africa, both the Arab parts of northern Africa and the sub-Saharan parts of the continent. It is widely understood that the geographical spread of the Court should follow that of the Security Council since both principal organs consist of 15 members.
22 The procedure in each electoral organ is governed by the UN Charter and the ICJ Statute, and subject thereto, by the organ’s internal rules of procedure. Following difficulties that occurred in the first election of 1946, the rules of procedure of each organ contains an identical provision to the effect that any meeting of the General Assembly or Security Council held pursuant to the ICJ Statute for the purpose of electing members of the Court shall continue until as many candidates as are required for the seats to be filled have obtained in one or more ballots an absolute majority of votes.
23 In the period 1946–2005, 86 persons were elected as members of the Court. Of these, five resigned before the end of their term of office and 20 died while in office. Two were elected to a third term (one served the full 27 years as a member of the Court). In the General Assembly, the growth in the membership of the UN has been accompanied by the development of what is widely known as the ‘Group System’ of organizing groups of States on a mixed geographical and ideological basis. Under this system, each geographical group recognized by the General Assembly (Western European and Others, Eastern European States, Asian States, African States, and Latin American and Caribbean States) decides through its internal machinery on its preferred candidate for all elections, including those for the Court, leaving the electoral colleges with little or no choice but to endorse that preference. Only where a group is unable to reach agreement on its preferred candidate is there real election in the UN organs.
24 The main problem that has arisen in each organ is what to do if on any single ballot, more candidates receive the required majority than there are vacancies. First, the Security Council and later, the General Assembly, decided that when this occurs, no candidate shall be declared elected by that organ and the voting procedure should be repeated until only the required number of vacancies is filled. In the General Assembly (but not in the Security Council), the issue of restricted ballots has been raised after three indecisive open ballots. Between 1951–60, that system was followed. It was formally abandoned in the election of 1960 and has not been reintroduced since.
25 However, in the General Assembly, the steady increase in the number of members of the UN and with it, the steady increase in the absolute majority required, have led to far-reaching developments and strained the whole system of election management both for the candidates and for the electors. In the first place, the expression ‘absolute majority of votes’ is interpreted to mean an absolute majority of the total membership of the General Assembly, regardless of whether a State voted or not or, for one reason or another, was disqualified from voting. This is a matter which will not be generally known until the meeting at which the election takes place. Apart from absences and deliberate abstentions, the principal reason rendering a State ineligible to vote in the General Assembly is if that member is in arrears in the payment of its assessed financial contributions to the organization and the amount of its arrears equals or exceeds the amounts due from it for the preceding two full years unless the General Assembly has decided to permit that member to vote (Art. 19 UN Charter). It also appears that the Security Council can recommend to the General Assembly that a State should not be entitled to take part in the work of the General Assembly in certain exceptional circumstances. If that State was or was deemed to be a member of the UN when such a determination was made, it will be included in the quorum required to calculate the absolute majority. Thus, between 22 September 1992 and 1 November 2000, the former Socialist Federal Republic of Yugoslavia, an original member of the UN, was denied participation in the work of the General Assembly (Yugoslavia, Dissolution of). Yugoslavia was nevertheless included in the total membership of the General Assembly for the purpose of calculating the absolute majority required for election to the ICJ.
26 Being a member of the Court is a full-time occupation. No member of the Court may exercise any political or administrative function or engage in any other occupation (Art. 16 ICJ Statute). Nor may a member act as agent, counsel, or advocate in any case. Likewise, a member of the Court may not participate in the decision in any case in which he or she has previously taken part as agent, counsel, or advocate for one of the parties or as a member of a national or international court, a commission of inquiry, or in any other capacity (Art. 17 ICJ Statute; International Courts and Tribunals, Agents, Counsel and Advocates). In principle, all the available members of the Court are bound to hold themselves permanently at the disposal of the Court unless they are on leave or prevented from attending by illness or other special reasons duly explained to the president (Art. 23 ICJ Statute). Art. 24 ICJ Statute also provides for the recusation or self-recusation of a member of the Court. If, for some special reason, a member of the Court considers that he or she should not take part in the decision of a particular case, he or she shall so inform the president. Parallel to that, if the president considers that for some special reason a member of the Court should not sit in a particular case, the president shall give that member notice accordingly. If necessary, the matter shall be settled by the decision of the Court.
27 There have been a few instances of States engaged in contentious litigation before the Court or directly interested in an advisory opinion raising questions on the eligibility of a member of the Court to take part in that case, all of them based on an individual member’s previous activities in his country’s diplomatic service. The Court dismissed all such challenges, mainly it seems on the ground that the person’s diplomatic activities were made under instructions and were remote from the particular issues brought before the Court in the case at hand.
28 The ICJ Rules regulate the precedence among the members of the Court(International Court of Justice, Rules and Practice Directions). Art. 3 ICJ Rules lays down the general principle that in the exercise of their functions, the members of the Court have equal status irrespective of age, priority of election, or length of service. They take precedence according to the date on which their terms of office began. The practical significance of this is that as is customary in judicial practice, judges vote in inverse order of seniority.
29 Art. 8 UN Charter lays down that the UN shall place no restrictions on the eligibility of men and women to participate in any capacity and under conditions of equality in its principal and subsidiary organs. For a long time and following the history of the PCIJ, membership in the Court was a male preserve. This was first broken in 1985 when Tunisia chose Suzanne Bastid as judge ad hoc in the Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) ( ICJ Rep 192). In 1995, Rosalyn Higgins of the UK was first elected a member of the Court for the unexpired term of Robert Jennings. She was re-elected to a full term from 6 February 2000. In 2006, she was elected president of the Court, the first woman to hold that office.
30 Art. 20 ICJ Statute requires every member of the Court, before taking up his or her duties, to make a solemn declaration in open court that he or she will exercise his or her powers impartially and conscientiously. Art. 4 ICJ Rules of 1978 currently in force, sets out the terms of the declaration to be made at the first public session of the Court at which the member is present and as soon as practicable after the term of office begins: ‘I solemnly declare that I will perform my duties and exercise my powers as judge honourably, faithfully, impartially and conscientiously’.
31 Art. 32 ICJ Statute provides that all members shall receive an annual salary and a retirement pension, both of which are free from all taxation. The salary is fixed by the General Assembly. As a charge on the UN budget, the salaries and pensions are fixed in US dollars. From 1946 to 2002, the salaries were paid in Dutch florins and since 2002, in euros, the currency of the Netherlands. The whole period is marked by virtually continuous currency instability and inflation, requiring repeated re-examination of the salaries and pensions in the General Assembly. The General Assembly closely scrutinizes proposals for an increase in the salaries or pensions.
2. The President of the Court
32 Under Art. 21 ICJ Statute, the Court shall elect its president and vice-president for three years. They may be re-elected. These elections take place every third year on or after 6 February and they coincide with the recurrent election of one third of the members of the Court. Under Art. 3 ICJ Rules, the president and vice-president, while holding office, take precedence before all other members of the Court. The president has general representative functions for the Court both in the Netherlands and in relation to other organs of the UN, especially the General Assembly and the Security Council. The president also has particular functions in connection with the determination of an individual case. Details of the president’s functions in relation both to the Court’s affairs in general and more especially in relation to a particular case are set out in the ICJ Rules. If the president is a national of one of the parties to a dispute, the presidential functions for that case are to be exercised by the vice-president or failing that, by the next senior judge not ineligible to sit in the case, in the capacity of acting president. If the president of the Court is a member of any one of the chambers, he or she shall be president of that chamber.
33 In the event of an equality of votes on any matter, administrative or judicial, the president (including of course, the acting president) has a casting vote. This is necessary where a decision is required. There have been two judicial instances in the present court in which the decision was made by the president’s casting vote—the judgment in the contentious South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (Second Phase) (‘ South West Africa: Second Phase’) ( ICJ Rep 6; South West Africa/Namibia [Advisory Opinions and Judgments]), and part of the answer in the Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) ( ICJ Rep 226; Nuclear Weapons Advisory Opinions). The view is sometimes expressed that since an advisory opinion is not an executory decision, the casting vote should not be used and the Court should exercise its discretion and refrain from answering the question put to it or at least omit from the answer any phrase on which there was an equality of votes.
34 The president’s work is an onerous addition to that judge’s work as a member of the Court. Art. 32 ICJ Statute provides that the president shall receive a ‘special annual allowance’ and the vice-president, a special allowance for every day on which he or she acts as president. These allowances, which are not pensionable, are free from all taxation and are fixed by the General Assembly.
3. The Bench in a Particular Case; The Judge Ad Hoc
35 In principle, the full court should sit except when it is expressly provided otherwise. A State engaged in proceedings before the Court is entitled to have its case heard and determined by the largest available number of elected judges. Provided that the number of available judges is not reduced to less than 11, the ICJ Rules provide for allowing one or more judges according to the circumstances and in rotation to be dispensed from sitting. A quorum of nine members of the Court is sufficient to constitute the Court (Art. 25 ICJ Statute).
36 Art. 31 (1) ICJ Statute provides that members of the Court of the nationality of each of the parties shall retain their right to sit in the case before the Court. This is equalized and balanced by Art. 31 (2)–(3) ICJ Statute. Art. 31 (2) ICJ Statute deals with the situation where one of the parties has a judge of its nationality on the bench, and Art. 31 (3) ICJ Statute on when the bench includes no judge of the nationality of either party. In both these situations, the party concerned may choose a person to sit as judge for the purposes of that case. That person is known as a ‘judge ad hoc’. Judges ad hoc take precedence after the members of the Court in order of their seniority based on age.
37 While the institution of judges ad hoc may be seen as contradicting the fundamental legal principle that no one is judge in his own cause (nemo judex in causa sua), it is traditional in international arbitration practice that an arbitral tribunal should contain members with the nationality of the parties, leaving the decision in the hands of a third party or ‘neutral’ arbitrator. The institution of judges ad hoc in litigation before the ICJ conforms to well-established international practice. A passage by Judge ad hoc Elihu Lauterpacht is today widely taken to indicate the true function of the judge ad hoc. In his dissenting opinion he wrote: ‘consistently with the duty of impartiality by which the ad hoc judge is bound … [h]e has … the special obligation to endeavour to ensure that, so far as is reasonable, every relevant argument in favour of the party that has appointed him has been fully appreciated in the course of collegial consideration and, ultimately, is reflected—though not necessarily accepted—in any separate or dissenting opinion that he may write’ (Application of the Convention on the Prevention and Punishment of the Crime of Genocide Case [Bosnia and Herzegovina v Serbia and Montenegro] [Further Provisional Measure]  ICJ Rep 325, 409) [Application of the Convention on the Prevention and Punishment of the Crime of Genocide Case (Bosnia and Herzegovina v Serbia and Montenegro)]).
38 The judges ad hoc take part in the case on a footing of complete equality with the members of the Court hearing the case. They are entitled to participate in every meeting of the Court devoted to the case. This equality extends not only to the participation in the deliberations with the right both to vote and to attach a separate or dissenting opinion to a judgment or order whenever found appropriate, but also to the compensation due to judges ad hoc for each day on which they exercise their functions, which is the equivalent of 1/365th part of the annual salary of a member of the Court. They are entitled to appropriate office space and to the usual travel allowances. They are also entitled to the same diplomatic privileges and immunities as are accorded to the members of the Court.
39 The PCIJ reserved the right to accept the person chosen as judge ad hoc and on one occasion, indicated that a person selected would not be appropriate. The ICJ, accordingly, customarily asks the other side if it has any observations on its adversary’s choice of a person as a judge ad hoc. In 2002, the ICJ went further. In Practice Direction VII, it expressed its view that it was not in the interest of the sound administration of justice that a person should sit as a judge ad hoc in any case when that person is acting as agent, counsel, or advocate in another case before the Court. It gave three years as the ‘cooling off’ period for this purpose. In the same Practice Direction, it requested parties not to designate as agent, counsel, or advocate in a case before the Court a person who sits as judge ad hoc in another case before the Court.
40 The institution of judges ad hoc does not answer all possible cases, for instance where there are several States on one side. The most notable example of this was the Legality of Use of Force Cases (Yugoslavia, Cases and Proceedings before the ICJ), which Yugoslavia (Serbia and Montenegro) brought in 1999 against 10 members of the North Atlantic Treaty Organization (NATO). These cases were not joined but were grouped together and heard in common. However, of the 10 respondent States, several had members of the Court of their nationality and others appointed a judge ad hoc in the proceedings for the indication of provisional measures in 1999. This produced the curious spectacle of repeated adjournments of the Court’s public session to enable the Court to reconvene in a different composition, according to which respondent was pleading at any given moment. It is not known how the Court deliberated and voted on that occasion. In the preliminary objections phase in 2003–04, the Court found that the remaining eight respondents, the applicants in the preliminary objection phase, all shared the same interest, and as there were already members of the Court with the nationality of some of these respondents, the others were not entitled to appoint a judge ad hoc each. This nevertheless produced some imbalance as the judge ad hoc appointed by the original applicant was balanced by four members of the Court having the nationality of different respondent parties.
4. Chambers of the Court
41 The San Francisco Conference on International Organization made a major change in the provisions regarding the chambers of the Court. Instead of the requirement under the PCIJ Statute for special chambers for labour cases and cases relating to transport and communications, both related to provisions contained in the 1919 Peace Treaties (Sec. B.5. Permanent Court of International Justice [PCIJ]). Art. 26 (1) ICJ Statute empowers the Court from time to time to form one or more chambers composed of three or more judges as the Court may determine for dealing with particular categories of cases, ‘for example, labour cases and cases relating to transit and communications’. Although the Court considered the matter on several occasions, it was not until 1993 that it decided to form a seven-member Chamber for Environmental Matters to deal with such cases as the parties may refer to it. So far, no case has been referred to this special chamber. Art. 27 ICJ Statute is a new provision inserted at the San Francisco Conference on International Organization. It states that a judgment given by any of the chambers ‘shall be considered as rendered by the Court’. It is understood that this was inserted primarily to maintain the numbering of the articles of the statute.
42 Art. 26 (2) ICJ Statute contains one of the major innovations of the new statute. It empowers the Court ‘at any time [to] form a chamber for dealing with a particular case. The number of judges to constitute such a chamber shall be determined by the Court with the approval of the parties.’ This is amplified by Art. 17 ICJ Rules. When the parties have agreed that the case should be heard by such a chamber, the president ‘shall ascertain their views regarding the composition of the Chamber, and shall report to the Court accordingly’. Technically, the Court then determines, with the approval of the parties, the number of its members who are to constitute the chamber and proceeds to their election (under Art. 18 ICJ Statute, these elections are held by secret ballot). This is a roundabout way of saying that the parties may agree not only on the number of persons forming the chamber, but also who, from among the members of the Court, shall sit in the chamber.
43 For a long while, this provision laid dormant. In 1981, Canada and the US jointly submitted the Gulf of Maine Case to the Court and requested that it be determined by a chamber under this provision. Since then, five more cases have been determined in this way: the Elettronica Sicula Case ( ICJ Rep 15; the only one of these cases to have been instituted by unilateral application, the parties having agreed beforehand at the diplomatic level to proceed in this way); the Land, Island and Maritime Frontier Dispute Case (El Salvador/Honduras: Nicaragua Intervening) and in 2002, the application for the revision of that judgment (Application for Revision of the Judgment of 11 September 1992 in the Land, Island and Maritime Frontier Dispute [El Salvador/Honduras: Nicaragua Intervening] [El Salvador v Honduras]  ICJ Rep 392); and the two Frontier Dispute cases, between Burkina Faso and Mali (Frontier Dispute Case [Burkina Faso/Republic of Mali]) and between Benin and Niger (Frontier Dispute Case [Benin/Niger]). Each one of these chambers consisted of three members of the Court and two members, one appointed by each of the parties. In the Elettronica Sicula Case, there was a member of the Court of the nationality of each of the parties, and those members were part of the chamber. As an exception to the general rule, a member of the Court whose term of office expires while he or she is a member of one of these chambers shall continue to sit in the chamber until the case is finished.
44 Art. 29 ICJ Statute leaves unchanged the provision for the regular establishment year by year of a Chamber of Summary Procedure available for the speedy despatch of business. No recourse to this chamber has taken place since 1946.
45 Under Arts 26 and 29 ICJ Statute, cases can be heard by any one of these chambers only upon the request of the parties. Under Art. 28 ICJ Statute, any one of these chambers may, with the consent of the parties, sit and exercise its functions elsewhere than at The Hague, and Art. 30 ICJ Statute permits the chambers to sit with assessors without the right to vote. There has been no instance of this.
5. The Registry
46 The court is the only principal organ of the UN to have its own secretariat, going under the traditional name of Registry, headed by the registrar. Art. 21 ICJ Statute empowers the Court to appoint its registrar and such other officers as may be necessary. The registrar and staff are thus independent of the Secretary-General and the UN staff although their terms and conditions of service are largely assimilated to those of the UN Secretariat subject to the ICJ Statute and ICJ Rules. This distancing of the staff of the Court from the staff of the UN is essential in protecting the independence of the Court in the exercise of its functions and corresponds to widely accepted national practice of an administration of courts separate from the general civil service administration. Arts 22–29 ICJ Rules govern the functioning of the registrar and the Registry.
47 Under Art. 22 ICJ Rules, the Court elects its registrar by secret ballot from amongst candidates proposed by members of the Court. The registrar is elected for a term of seven years and may be re-elected. The Court also elects a deputy-registrar by the same process. Before taking up their duties, the registrar and deputy-registrar have to make a solemn declaration at a meeting of the Court to the effect that they will perform the duties incumbent upon them ‘in all loyalty, discretion and good conscience, and … will faithfully observe all the provisions of the Statute and of the Rules of the Court’ (Art. 24 ICJ Rules). The registrar has the equivalent rank and status of an Assistant Secretary-General of the UN. Both the registrar and the deputy-registrar when acting as the registrar are accorded the same treatment in The Hague as the heads of diplomatic missions.
48 The registrar is the regular channel of communication to and from the Court and is generally responsible for the proper administration of the Court. Together with the president, the registrar signs all judgments, advisory opinions and orders of the Court. This is for purposes of authentication and not as to the contents of the document so signed. The registrar, in person or through the deputy, attends all meetings of the Court. In open sessions, the registrar, appropriately robed and wearing a jabot, is seated to the president’s extreme right. The registrar has special responsibilities regarding the Court’s financial administration and represents the Court in the appropriate organs of the Secretariat and the General Assembly in connection with the Court’s annual budget. The deputy-registrar, in addition to assisting the registrar and acting for the registrar in the latter’s absence, now has special administrative responsibilities regarding the archives, computerization, and the general services division. On the other hand, the registrar has no quasi-judicial powers or functions in connection with any pending case such as those found in many national court systems. In the ICJ, such functions are normally exercised by the president of the bench.
49 The Registry is the permanent administrative organ of the Court. The ICJ Statute and the ICJ Rules define its functions. Since the Court is both a judicial body and an international institution, the Registry’s role is both to provide technical judicial support and to act much like an international secretariat. Accordingly, its work is both judicial and diplomatic on the one hand, and on the other, it corresponds to that of the legal, administrative, financial, conference, and information services of an international organization. The officials are appointed by the Court upon the proposal of the registrar and generally enjoy the same privileges and immunities in The Hague as members of diplomatic missions of comparable rank. They have a status, remuneration, and pension rights corresponding to those of secretariat officials of comparable rank. Before taking up their duties, the staff members have to make a solemn declaration before the president and in the presence of the registrar to the effect that the staff member will perform the duties incumbent on him or her as an official of the ICJ ‘in all loyalty, discretion and good conscience, and … will faithfully observe all the provisions of the Statute and of the Rules of the Court’ (Art. 25 ICJ Rules).
50 For the UN’s budgetary biennium 2004–05, the staffing chart of the Registry showed a total of 98 staff members: 45 in the administrative or higher category of officials and 53 in the general service category. The Registry’s substantive divisions and units consist of the Department of Legal Affairs, the Department of Linguistic Matters, and the Information Department. This is backed by the usual technical divisions for personnel, finance, publications, documents and library, archives including indexing and distribution, reproduction, information technology, and general assistance. Attached to the Department of Legal Matters are five law clerks whose task is to undertake legal research at the request of members of the Court.
6. The Court’s Finances
51 Art. 32 ICJ Statute provides that the expenses of the Court shall be borne by the UN in such a manner as shall be decided by the General Assembly. Under Art. 17 UN Charter, the General Assembly shall consider and approve the budget of the UN. The expenses are to be borne by the members of the UN in such proportion as the General Assembly shall decide, and under Art. 18 (2) UN Charter, budgetary questions are included in the list of ‘important questions’ requiring in the General Assembly a two-thirds majority of the members present and voting. In the UN, apart from the Secretariat which prepares the budget and submits it to the General Assembly, organs specially concerned with the administrative and financial matters include the Advisory Committee on Administrative and Budgetary Questions, the Joint Inspection Unit, and the Fifth Committee (Administrative and Budgetary Questions) of the General Assembly. In 1946, the total provisional budget of the UN was US$21.5 million of which US$617,250 was the global figure for the estimated expenditure of the Court. In the Programme Budget for the biennium 2006–07 approved by the General Assembly in Resolution 60/248 (UNGA Res 60/248 [23 December 2005] GAOR 60th Session Supp 49 vol 1, 480), the proposed appropriation for the Court was US$34,956,900 out of a total of US$3,708,912,500. Special arrangements are made to meet the Court’s unforeseen expenditure.
52 The Court is in a different position from that of almost all the other organs, principal and subsidiary, of the UN. It does not work on programmes which can be postponed or abandoned at will, as has occurred when the UN found itself in financial difficulties. The UN Charter and the ICJ Statute lay down its functions, and this requires that its administrative arrangements are such that it is always able to perform its functions as demanded. In the case of requests for an indication of interim (provisional) measures of protection, this can be a matter of urgency, even of great urgency (such as when human life is at stake). Advisory opinions may also be requested as a matter of urgency. For this reason, while to some extent the Court can anticipate its likely expenditure in the coming financial period, it has to have sufficient funds at its disposal to enable it to meet all unanticipated demands for its services.
7. The Seat of the Court
53 Art. 22 ICJ Statute establishes the seat of the Court at The Hague, making the Court the only principal organ of the UN having its seat elsewhere than at the seat of the UN. This does not prevent the Court from sitting and exercising its functions elsewhere whenever it thinks it desirable. Art. 55 ICJ Rules amplifies this. It allows the Court, if it thinks it desirable, to decide that all or part of the oral proceedings in a case shall be held elsewhere than at the seat of the Court, but before doing so, it needs to ascertain the views of the parties. There has been no instance of the Court sitting anywhere else than at The Hague. Art. 66 ICJ Rules empowers the Court to exercise its functions with regard to the obtaining of evidence at a place or locality to which the case relates. The Court has once made use of this power to visit the locality concerned in accordance with arrangements that had been proposed by the parties in the Gabčíkovo-Nagymaros (Hungary/Slovakia) Case  ICJ Rep 3; Gabčíkovo-Nagymaros Project (Hungary/Slovakia) case). At The Hague, the Court occupies premises formerly occupied by the PCIJ under an agreement in 1946 between the UN and the Carnegie Foundation together with some additional space built at the expense of the Netherlands Government. In 1969, the Court attempted to initiate an amendment to the ICJ Statute to enable it to move its seat from The Hague. There was no support for this in the General Assembly, and the initiative was abandoned.
8. The Representation of the Parties before the Court
54 The person appointed to represent a government in contentious litigation before the Court is designated ‘agent’ following the traditional patterns of international arbitration. This is essentially a diplomatic position although the agent may also act as advocate and plead. Art. 40 ICJ Rules lays down that after proceedings have been instituted, all steps on behalf of the parties shall be taken by agents. Customarily, a practising attorney, whether or not in the service of the government, is appointed agent. Agents are obliged to have an address for service at the seat of the Court. Art. 42 ICJ Statute goes on to state that the agent may have the assistance of counsel or advocates and that all these persons shall enjoy the privileges and immunities necessary for the independent exercise of their duties.
55 There are no formal qualifications required of an agent. However, the Court has indicated whom it would prefer not to be appointed to this position. In Practice Direction VIII originally issued in 2000 and revised in 2001, it expressed the view that it would not be in the interest of the sound administration of justice that a person who, during the immediately preceding three years, had been a member of the Court, a judge ad hoc, or a senior official of the Registry appear as agent, counsel, or advocate in a case before the Court.
56 There are no special qualifications required of counsel or advocates before the Court. The choice is a matter for the parties concerned who doubtless will have due regard for the status of the Court. Frequently, professors of international law have been retained as counsel. Although the ICJ Statute only mentions counsel and advocates (without indicating what is the distinction between the two), if a party so requires, a member of the delegation who does not have legal qualifications may undertake part of the oral pleading and address the Court. That person would not be treated as an expert and be subject to cross-examination but as an advocate. Persons addressing the Court should be attired as they would be when appearing before their national supreme court.
1. The Notion
57 As seen elsewhere (see International Courts and Tribunals, Jurisdiction and Admissibility of Inter-State Applications), Jurisdiction is the link between the general political level of the diplomatic phase of the dispute and the functioning of the Court or tribunal seised of the case, the legal dispute. It is the channel through which a court or tribunal receives its power to decide a case with binding force for the parties (see also Claims, International; Mass Claims). Without jurisdiction to cover the particular case before it, any court or tribunal is powerless. As explained in International Courts and Tribunals, Jurisdiction and Admissibility of Inter-State Applications, there are two separate elements in jurisdiction: the personal and the material, jurisdiction ratione personae and jurisdiction ratione materiae. In the ICJ, the fundamental rule is laid down in Art. 36 (1) ICJ Statute: ‘The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force’. All the rest is a refinement of that fundamental rule of international law: the Court’s jurisdiction is essentially consensual, ex consensu advenit jurisdictio.
2. Jurisdiction Ratione Personae
58 For the ICJ, jurisdiction ratione personae consists of two elements, both of which have to exist for both parties at the time the proceedings are instituted and when the decision is given. First, under Art. 34 (1) ICJ Statute, ‘[o]nly States may be parties in cases before the Court’. This excludes both organizations composed of States (intergovernmental organizations) which nevertheless have an element of what may be termed a secondary procedural standing in certain types of cases and individuals (including non-governmental organizations [‘NGOs’]) with no formal standing (International Courts and Tribunals, Standing) in the ICJ. Second, a State Party to a case must either be a party to the ICJ Statute (whether or not a member of the UN) or a State which meets the conditions laid down by the Security Council under Art. 35 ICJ Statute for other States for which the Court shall be open. These conditions must not place the parties in a condition of inequality before the Court. The party instituting the proceedings has to be qualified to so act on the date of the institution of the proceedings, and if that condition is not met, the Court will not have jurisdiction. (Legality of Use of Force [Serbia and Montenegro v Belgium] [Preliminary Objections]  ICJ Rep 279 and similar cases against seven other members of NATO).
59 For States which are not members of the UN, Art. 93 (2) UN Charter provides that such a State may become a party to the ICJ Statute on conditions to be determined in each case by the General Assembly upon the recommendation of the Security Council. Since 1946, the following States have become parties to the ICJ Statute at a time when they were not members of the UN: Switzerland (1948), Liechtenstein (1950), Japan (1954), San Marino (1954), and Nauru (1988). As for States which are not parties to the ICJ Statute, Art. 35 (2) ICJ Statute cited above applies. The Security Council set out the conditions in Resolution 9 (UNSC Res 9  [15 October 1946] SCOR 1st year 14). This is now taken up by Art. 41 ICJ Rules on the institution of proceedings by a State which is not a party to the ICJ Statute.
60 At the time of writing, all existing independent States (except the Holy See/Vatican City) are members of the UN and, therefore, are parties to the ICJ Statute. Between 1946–91, the USSR and two of its constituent republics, the Byelorussian SSR and the Ukrainian SSR, were original members of the UN under Art. 3 UN Charter. They retained that status after the dissolution of the USSR and the establishment of the Russian Federation. It is an open question whether semi-independent States which have reached that status as a result of the process of decolonization have access to the Court. For instance, two States in this position—Cook Islands and Niue—are parties to the UN Convention on the Law of the Sea with its elaborate provisions for the compulsory settlement of disputes in which the ICJ is one of the optional choices. So long as the ICJ Statute is interpreted to mean that only independent States have access to the Court, States Parties to the UN Convention on the Law of the Sea which have chosen the ICJ as their residual dispute settlement organ are left without a remedy should a dispute with a semiindependent State Party to that convention arise.
61 Since 1946, and more especially, since the Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) of 1949 ( ICJ Rep 174), recognizing the ability of the UN to present a claim against a State for reparation in respect of injuries suffered both by the UN as an organization and by the national State of the individual concerned, there has been a movement calling for the opening of the Court to the UN as an organization having international personality under international law. This idea came before the General Assembly in a report from the Committee on the Charter of the United Nations and on Strengthening the Role of the Organization. The reaction of the General Assembly was sharp. In General Assembly Resolution 52/161 of 15 December 1997 (GAOR 52nd Session Supp 49 vol 1, 385), while expressing interest in enhancing the role of the Court, the General Assembly was emphatic that ‘whatever action may be taken … will have no implications for any changes in the Charter of the United Nations or the Statute of the International Court of Justice’ (United Nations Charter, Amendment). This was repeated a year later in General Assembly Resolution 53/106 of 8 December 1998 (GAOR 53rd Session Supp 49 vol 1, 360).
3. Jurisdiction Ratione Materiae
62 As for jurisdiction ratione materiae, it has to be established that each party has given its consent that the Court should decide the dispute that has been brought before it and that the dispute comes within the terms on which the respondent has accepted the jurisdiction. When the case is brought before the Court by unilateral application, if the respondent takes any action in the case without objecting to the title of jurisdiction as invoked, it will be taken to have given the necessary consent (Estoppel). For this purpose, the procedure on preliminary objections or alternatively, the possibility of a plea in bar, is available to test the validity of the title of jurisdiction invoked in light of the facts and circumstances of the case. Against this background, which is embodied in Art. 36 (1) ICJ Statute as quoted above, there are several different ways in which the necessary consent can be expressed. These include notably the special agreement and its variant, the framework agreement; a compromissory clause in a treaty; the socalled compulsory or optional clause jurisdiction (International Court of Justice, optional clause); and the agreement through successive acts in the proceedings, the so-called forum prorogatum jurisdiction.
(a) The Special Agreement and the Framework Agreement
63 Traditionally, international arbitrations took place on the basis of a special agreement, also frequently known under its French name, compromis. This is an agreement by which two or more States or other duly qualified entities agree to refer a defined dispute or question to a specific court or tribunal for a binding decision with which they undertake to comply. In arbitrations, the special agreement frequently sets out details of the arbitration machinery and some aspects of the procedure to be followed. This is unnecessary in the ICJ since, for the most part, the ICJ Statute and ICJ Rules regulate these matters. When States refer a matter to the Court under a special agreement, the Court’s function is to give an answer to the question put to it or, in the words added to Art. 38 ICJ Statute in 1945, to decide the case submitted to it in accordance with international law. That answer in the operative clause of the decision will set out the obligations of the parties which should lead to a settlement of the dispute.
64 The ICJ has experienced the situation where the parties have agreed that there is a dispute between them and that it should be referred to the Court for decision, but the parties are unable to agree on the precise definition of the dispute or on the issue to be put to the Court. Here, the parties give their consent that either party may unilaterally apply to the Court but leave the full definition of the dispute and of the issues that the Court is to settle to be developed in the course of the proceedings. This type of reference to the Court may be termed as framework agreements (although the Registry prefers to regard these as special agreements). The first case brought before the Court in this way was the Asylum Case (Colombia/Peru) (Judgment) ( ICJ Rep 266; Haya de la Torre Cases). The ICJ was unable to settle the dispute primarily because the parties’ submissions as the pleadings progressed did not address the principal issue in dispute between them. This is an indication that a framework agreement of this type may not always be a satisfactory way of bringing a dispute before the Court and that if the parties desire the ICJ to help them judicially settle their dispute, they need to consider the question of how the case will be pleaded when it comes before the Court.
65 By the end of 2006, 15 cases had been brought before the Court by virtue of a special agreement and a further three by virtue of a framework agreement.
(b) A Compromissory Clause
66 Frequently regarded as a formal matter and even as a final clause; Final Clauses (which it is not), during the period of the Cold War, the inclusion of a compromissory clause conferring jurisdiction on the ICJ in a treaty being negotiated through a UN body or in a conference convened by the UN (Conferences and Congresses, International) was often the subject of sharp controversy. Such debates usually obscured the real issue, namely, whether a process of obligatory judicial settlement of disputes arising out of the instrument under negotiation was to be an integral part of the negotiation or an optional addition.
67 The San Francisco Conference on International Organization faced the problem of the future of compromissory clauses conferring jurisdiction on the PCIJ that were in force when the ICJ Statute entered into force. To meet this issue, it inserted a new Art. 37 into the ICJ Statute. Under this provision, whenever a treaty or convention in force provides for reference of a matter to a tribunal instituted by the League or to the PCIJ, the matter shall, as between the parties to the ICJ Statute, be referred to the ICJ. This provision has been relevant in several cases before the ICJ, which has interpreted it as, in effect, providing that as between parties to the ICJ Statute, every reference in treaties to the PCIJ should now be construed as a reference to the ICJ. The court also explained that the thrust of Art. 37 ICJ Statute is on the instrument not on the jurisdiction to which the instrument gave expression, and the instrument had to be in force when the ICJ Statute entered into force even if, at that time, the compromissory clause was inoperable and to remain in force until the particular case was brought before the Court. (See Certain Property Case [Liechtenstein v Germany] [Preliminary Objections]  ICJ Rep 6).
(c) The Compulsory (Optional Clause) Jurisdiction
68 The 1920 compromise which produced the so-called compulsory or optional clause jurisdiction of the PCIJ was retained in 1945 in the ICJ Statute (Art. 36 (2)–(5)) with minor modifications and the addition of two new paragraphs (Art. 36 (4)–(5)). There is no protocol of signature of the ICJ Statute, membership in the UN or more limited participation in the ICJ Statute under Art. 93 (2) UN Charter taking its place. Under Art. 36 (2) ICJ Statute, the States Parties to the statute may, at any time, declare that they recognize as compulsory ipso facto and without special agreement in relation to any other State accepting the same obligation the jurisdiction of the Court in all legal disputes concerning a) the interpretation of a treaty; b) any question of international law; c) the existence of any fact which, if established, would constitute a breach of an international obligation; and d) the nature and extent of the reparation to be made for the breach of an international obligation. Under Art. 36 (3) ICJ Statute, these declarations may be made unconditionally or on condition of reciprocity on the part of several or certain States or for a certain time. They are to be deposited with the Secretary-General of the UN (Depositary). At the end of 2005, declarations by 64 out of the 192 members of the UN were in force.
69 The San Francisco Conference on International Organization also faced the problem of the future of the declarations accepting the jurisdiction of the PCIJ. Here, it introduced the new Art. 36 (5) ICJ Statute according to which, declarations made under the PCIJ Statute ‘and which are still in force shall be deemed, as between the parties to the present Statute, to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their terms’. The Court has interpreted this provision as being directed to the jurisdiction established by the existence of a declaration. That jurisdiction had to be in existence when the ICJ Statute entered into force, a condition which could only be met by the original members of the UN under Art. 3 UN Charter. The jurisdiction of the PCIJ under any title of jurisdiction came to an end with its dissolution on 18 April 1946 (Aerial Incident of 27 July 1955 [Israel v Bulgaria] [Preliminary Objections]  ICJ Rep 127; Aerial Incident Cases before International Courts and Tribunals).
70 By the end of 2005, 24 cases had been brought before the Court on the basis of this jurisdiction. By the same date, six declarations recognizing the jurisdiction of the PCIJ were still in force and indeed, the pending San Juan River case between Costa Rica and Nicaragua was filed in 2005 on this basis (Dispute regarding Navigational and Related Rights [Costa Rica v Nicaragua] [Application] [ICJ Doc 2005 General List No 133] paras 1–2).
(d) Agreement by Successive Acts: the Forum Prorogatum
71 The revised PCIJ Rules of 1936, taken over with minor changes by the ICJ as its rules in 1946, contained in Art. 32 (2) a requirement that a unilateral application instituting proceedings should ‘as far as possible specify the provision on which the applicant founds the jurisdiction of the Court’. This is now repeated with a slight change of language in Art. 38 (2) of the current ICJ Rules: ‘The application shall specify as far as possible the legal grounds upon which the jurisdiction is said to be based’. The words ‘as far as possible’ were inserted in 1936 after a long debate to indicate that an application would not be rejected in limine only because such specification was omitted. This has opened the way to a process by which the respondent can give its consent after it has received the application instituting proceedings, the consent being established by successive acts in the pleadings or independently of any formal pleading. In the Corfu Channel Case (Preliminary Objections) ([1947–48] ICJ Rep 15) the Court clarified that to establish the jurisdiction of the Court, the documents before it must demonstrate ‘a voluntary and indisputable acceptance of the Court’s jurisdiction’ (at 27). In the 1950s, several cases were sought to be brought before the Court in reliance on this doctrine, notably the four early Aerial Incident cases brought by the US against several Warsaw Pact countries (Warsaw Treaty Organization), and the two Antarctica cases brought by the UK against Argentina and Chile (Aerial Incident of 10 March 1953 [United States v Czechoslovakia] [Order]  ICJ Rep 6; Aerial Incident of 7 October 1952 [United States v USSR] [Order]  ICJ Rep 9; Aerial Incident of 27 July 1955 [United States v Bulgaria] [Order]  ICJ Rep 186; Aerial Incident of 4 September 1954 [United States v USSR] [Order]  ICJ Rep 158; Antarctica [United Kingdom v Chile] [Order]  ICJ Rep 15; Antarctica [United Kingdom v Argentina] [Order]  ICJ Rep 12). None of the respondents accepted the jurisdiction in these cases, all of which were formally entered in the Court’s General List, requiring an order from the Court to remove them from that list.
72 This was taken a stage further in the current ICJ Rules. Art. 38 (5) ICJ Rules provides: When the applicant proposes to found the jurisdiction of the Court upon a consent thereto yet to be given or manifested by the State against which [the] application is made, the application shall be transmitted to that State. It shall not however be entered in the General List nor any action be taken in the proceedings, unless and until the State against which such application is made consents to the Court’s jurisdiction for the purposes of the case. Several applications of this type have since been made to the Court, but so far, only in Certain Criminal Proceedings in France Case (Congo v France) and the Certain Questions of Mutual Assistance in Criminal Matters Case (Djibouti v France), both pending, did the respondent formally accept the jurisdiction for purposes of that particular case. This development, together with the introduction of the framework agreement reducing the rigidity of a special agreement, are two major illustrations of the gradual weakening of the Court’s deference to the concept of the sovereignty of the independent State, a notable trend in the evolution of the Court’s practice and procedure, especially since the end of the Cold War.
(e) Justiciable Disputes
73 There have been several attempts to spell out the meaning of the expression ‘legal disputes’. These frequently appear as a preliminary objection that the case before the Court is not admissible since the dispute is not a ‘justiciable’ dispute. Art. 16 1899 Hague Convention for the Pacific Settlement of International Disputes ([adopted 29 July 1899, entered into force 4 September 1900] (1893–99) 187 CTS 410), repeated in Art. 38 1907 Hague Convention for the Pacific Settlement of International Disputes ([adopted 18 October 1907, entered into force 26 January 1910] (1907) 205 CTS 233), limited the scope of the expression to the interpretation or application of international conventions or treaties (see also Interpretation in International Law). As seen in Sec. C.2. (c) above, Art. 36 (2) PCIJ Statute and ICJ Statute on the so-called compulsory (optional clause) jurisdiction are much broader. It can easily be made to cover virtually every international dispute. However, a dispute over the interpretation or application of a treaty may well be a camouflage for a far more deep-seated dispute which, in the absence of the agreement of the parties, may not only not be susceptible to a pure legal treatment but possibly, a pure legal treatment without touching the fundamental causes of the dispute may result in doing more harm than good. If two States have agreed to submit a given matter to the Court, no question of the ‘justiciability’ of the dispute should arise. Only a unilateral approach to the Court can give rise to this kind of objection. The ICJ has never accepted the non-justiciability argument as such. However, there are cases—outstanding are the Nuclear Tests Case (Australia v France) and the Nuclear Tests Case (New Zealand v France) (Nuclear Tests Cases)—in which the Court has declined to entertain the case, although not on that particular ground.
D. Elements of Procedure
1. Statute and Rules
74 Matters of procedure, that is to say, the inner workings of the Court and the conduct of the trial of a case, are regulated by a series of provisions; some, which are of major political concern and interest, are in the ICJ Statute, and most (in greater detail) are in the ICJ Rules made by the Court in the exercise of an express power conferred on it by Art. 30 ICJ Statute: ‘The Court shall frame rules for carrying out its functions. In particular it shall lay down rules of procedure.’ The provisions of the ICJ Statute are equally obligatory for the Court and for the parties and no derogation from them is possible. On the other hand, the ICJ Rules possess an inherent flexibility. Art. 101 ICJ Rules provides that the parties to a case may jointly propose particular modifications or additions to the rules, which may be applied by the Court or by a chamber if the Court or chamber considers them appropriate to the circumstances of the case. Acting under a similar provision, the PCIJ first adopted the PCIJ Rules in 1922, amending them in 1926, 1927, and 1931. With the encouragement of the Assembly, it then put in hand a major review of the PCIJ Rules and, in 1936, adopted a new version. In 1946, the ICJ took over these rules with some modifications as its Rules of the Court. In 1968, responding to some suggestions and criticisms from the General Assembly and in the professional literature, it commenced a thorough review of its rules. In 1972, it promulgated an initial revision and in 1978, a major revised version of the rules. Since then it has kept them under review.
75 In 2005, the Court decided on a new procedure for amending them. It will no longer undertake a review of the rules as a whole but in the light of experience will examine particular rules and promulgate their amendment as required. Under the new and current promulgation procedure, whenever the Court adopts an amendment to an article of the rules, the text will be posted on the Court’s website with an indication of its date of entry into force and a note of any temporal reservation relating to its applicability. The court also usually issues a press release announcing the adoption of any new rule. In the integrated updated text of the rules, articles amended since the ICJ Rules’ entry into force will be indicated by an asterisk and a footnote. Previously, each amendment to the rules had been formally promulgated in the preamble. That practice has now been discontinued. The PCIJ published the record of its deliberations on its rules (PCIJ Rep Series D No 2 and addenda). The ICJ has not followed that practice.
76 In addition to the ICJ Rules, the Court introduced for the first time in 2000 a series of Practice Directions. While these are not as formal as the ICJ Rules, indeed there is even some doubt as to their place in the hierarchy of norms governing the performance by the Court of its functions and the relations of States with the Court, one may presume that governments and practitioners will be guided by these Practice Directions or depart from them at their peril.
2. The Equality of the Parties
77 The most important general principle applicable in the Court’s procedure is the equality of the parties. This implies, among other things, that each party has equal rights to submit and present its legal case against the other and that legal remedies against a judgment are equally available to both parties. The scope of the process is such that in the long run, it will neutralize any initial advantage that might be obtained by either side, to ensure that neither side obtains some unfair advantage over the other. Quantitatively, the equality of the parties is a constant feature: Each party is entitled to the identical quantum of opportunity to present its case to the Court—the same time for and the same number of written pleadings, the same time for each round of the oral pleadings, strict observance of the rules of debate in the Court, and so on. The emphasis is on equality of opportunity, which each side is free to exploit at will.
3. The Format of a Case
78 The court’s official languages are English and French, and in principle, the Registry translates every document filed in one language into the other (Art. 39 ICJ Statute). The parties may agree that only one language shall be used. In that case, the Registry makes the translation for the use of members of the Court for whom the other language is the working language. If a party wishes to use any other language (especially in the oral proceedings), that party must arrange for a translation into one of the official languages. Special provisions relate to the authoritative text of judgments and advisory opinions.
(b) The Institution of Proceedings
79 Cases are brought before the Court by the notification (by one or both parties jointly) of a special agreement or by the filing of a unilateral application (Art. 40 ICJ Statute). In either case, the subject of the dispute and the parties shall be indicated, other items for inclusion being optional at this stage in order to preserve the possibility of the consent being derived from successive acts in the proceedings. The party bringing the case before the Court must also give the name of its agent (Art. 40 ICJ Rules). The respondent has an option: the non-indication of an agent may signify that the party is not going to appear in the case and is not going to defend its case, although that is not decisive. Once the case is properly brought before the Court, a folio is opened in the Court’s General List. A case can only be removed from that list by a decision of the Court.
80 Under Art. 53 ICJ Statute, where one of the parties does not appear or fails to defend its case, the other party may call upon the Court to decide in favour of its claim (International Courts and Tribunals, Non-Appearance). Before doing so, the Court must satisfy itself not only that it has jurisdiction in accordance with Arts 36–37 ICJ Statute but also that the claim is well founded in fact and in law. Non-appearance can be total or partial. In the Corfu Channel Case, Albania did not appear in the final phase of the case when the Court determined the amount of compensation due to the UK. In the Nuclear Tests Cases, France took no part in the proceedings, and indeed, refused to regard itself as a party to them. In the Fisheries Jurisdiction Cases (United Kingdom v Iceland) and Fisheries Jurisdiction Case (Federal Republic of Germany v Iceland) (Fisheries Jurisdiction Cases [United Kingdom v Iceland; Federal Republic of Germany v Iceland]), Iceland made no appearance but sent several communications to the Court. In the United States Diplomatic and Consular Staff in Tehran Case [United States v Iran]), Iran did not take part in the case at all. The US withdrew from the proceedings in the Military and Paramilitary Activities in and against Nicaragua Case (Nicaragua v United States) (‘Nicaragua Case’) after the Court’s judgment in the jurisdiction and admissibility phase.
(d) The Proceedings
81 The procedure consists of two parts: written and oral (Art. 43 ICJ Statute). The written proceedings, which lay the basis for the oral pleading, consist of the communication to the Court and through the registrar, to the parties, of memorials and counter-memorials, and if necessary, of replies and rejoinders (Art. 43 (1)–(2) ICJ Statute; Arts 44–54 ICJ Rules). Under Art. 49 ICJ Rules, a memorial should contain a statement of the relevant facts, a statement of law, and submissions. A counter-memorial should contain an admission or denial of the facts stated in the memorial, any necessary additional facts, observations concerning the statement of law in the memorial, a statement of law in answer to the memorial, and the submissions. A reply and rejoinder should not merely repeat the parties’ contentions but should be directed to bringing out the issues that still divide them. The Court does not interfere in the conduct of the written proceedings. The court has issued several relevant Practice Directions. Practice Direction II draws the parties’ attention to the need for the written pleadings ‘to bring out clearly the submissions and arguments of the party which is filing the proceedings’. Practice Direction III calls for restraints on prolixity in the written pleadings.
(e) The Order of Pleading
82 There are two methods for the order of filing written pleadings: the simultaneous and the consecutive. Simultaneous filing was (and still is) characteristic of international arbitration proceedings introduced by special agreement and, in the ICJ, is only available when the case is brought before the Court by special agreement. The simultaneous filing of pleadings in these cases often leads to a prolongation of the written phase as the issues are not fully brought out or joined until the counter-memorials are filed, requiring simultaneous filing of replies and rejoinders after that—three rounds of written pleadings in all. In Practice Direction I, the Court tries to discourage the practice. In cases brought by application, the normal order is consecutive, the applicant filing first. The primary requirement is for one round of written pleadings, the memorial and counter-memorial. A second round, reply and rejoinder, requires the Court’s consent. The order and time limits for the written pleadings are fixed by the Court or the president (of the bench) after consultation with the agents (Art. 31 ICJ Rules). In fixing these time limits, the Court also shows great—in the view of some, excessive—deference to the parties’ wishes. When the last document of the written proceedings is filed, the case is in the technical position of being ‘ready for hearing’. The main consequences of this are that no more documents may be filed by either party save under special conditions and with the Court’s approval and the case takes its place in the list of cases ready for hearing. In December 2006 the Court issued Practice Direction IXbis regulating the production of new documents, particularly documents that are only available in electronic form. At the same time in Practice Direction XIter it introduced the requirements for making up ‘judge’s folders’ for use in the oral proceedings. The court usually fixes the date for the hearing after consultation with the parties and takes account of different factors such as the urgency of the case, the state of the Court’s judicial calendar, and the like.
(f) The Hearing
83 The oral proceedings consist of the hearing by the Court of witnesses, experts, agents, counsel, and advocates (Art. 43 (5) ICJ Statute). This is a requirement of the ICJ Statute, and the Court must make provision for a hearing. However, if the parties decide that they do not want a hearing (this occurs occasionally in arbitration proceedings but it has not occurred in the Court in a contentious case), this step will be waived. In chambers, the hearing is not obligatory (Art. 92 (3) ICJ Rules). The hearing, under the control of the president (of the bench) has to be in public unless the Court decides otherwise or the parties demand that the public be not admitted. Minutes are made of each hearing and are normally posted on the Court’s website except where witnesses are called when the transcript is under embargo until the last of the witnesses has given evidence. In Practice Direction VI, the Court has called for succinctness and observation of the requisite degree of brevity in the hearings. Today, simultaneous interpretation is provided for the oral proceedings.
84 The ICJ has pioneered the hearing of witnesses in an international court. Witnesses were tendered in the Corfu Channel Case, South West Africa: Second Phase, Nicaragua Case, and the Application of the Convention on the Prevention and Punishment of the Crime of Genocide Case. As the first witnesses were called by the UK and examined by the British Attorney-General, in the nature of things, the common law system of the examination of witnesses was introduced into the Court’s practice and by and large, has been followed since. This consists of three stages: examination in chief or direct examination by the party calling the witness, cross-examination, and re-examination of the witness, with questions from the bench usually before the re-examination but sometimes after the examination of the witnesses has been completed. Leading questions, namely, questions that suggest the answer, are not permitted on the direct examination. In this respect, the ICJ is performing an unusual function for this type of court—acting as a court of first instance determining the facts and as a court of last resort applying the law to the facts. Most supreme courts do not have to determine the facts of a case before them. The Court has permitted expert witnesses to be examined on the voir dire, a common law method of testing the qualifications of an expert witness before the direct examination. When the hearings are completed, the president declares the hearing closed and the Court retires to consider the decision (Art. 54 ICJ Statute).
85 Each of the written pleadings has to contain the party’s ‘submissions’, and at the hearing, the agent has to file the party’s ‘final submissions’. A submission is a succinct statement of what the party is requesting the Court to decide in the operative clause of the decision, and the final submissions are the ultimate concretization of the legal dispute on which the Court is asked to decide. It should be worded as a positive statement, using words such as ‘decide’, ‘find’, ‘reject’, and the like. Where the case is brought before the Court by special agreement, the submissions should indicate the answer that the party would give to the issue posed in the special agreement. Where the case is brought before the Court by unilateral application, the case may develop in light of the successive submissions as the case proceeds, and if a preliminary objection or other proceedings have taken place since the application was filed, the successive submissions must conform to any modification that the case has undergone.
4. Incidental Proceedings
(a) The Notion
86 While the proceedings in a case are in progress according to the established format, different types of incidental proceedings—a case within the case—are encountered. These include requests for the indication of provisional measures of protection under Art. 41 ICJ Statute; preliminary objections challenging the jurisdiction under the title of jurisdiction invoked or the admissibility of the case, all arising under Art. 36 (6) ICJ Statute; intervention under Arts 62 or 63 ICJ Statute; counter-claims in accordance with Art. 80 ICJ Rules; and any other incidental matter that requires a decision by the Court as the case proceeds. The court’s jurisdiction over these types of cases (except counter-claims) is specified in the ICJ Statute, making it unnecessary to consider whether it is inherent in any international court or tribunal. Jurisdiction over counter-claims, based on the ICJ Rules, rests on different considerations. Common to all of these is that the specific consent ad litem of the parties is not required.
(b) Provisional Measures of Protection
87 Regarding provisional measures of protection, Art. 41 ICJ Statute gives the Court the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party (Interim (Provisional) Measures of Protection). Pending the final decision, notice of the measures indicated is to be given to the parties and to the Security Council. The procedure for this is laid down in Arts 73–78 ICJ Statute. The unusual wording of Art. 41 ICJ Statute (use of the verbs ‘indicate’ and ‘suggested’) and discrepancies between the English and French versions of the statute led to a long controversy over the question of whether an order indicating provisional measures imposes a binding obligation on the parties or whether it is merely a recommendation. This controversy was only settled by the present court in its judgment in the LaGrand Case (Germany v United States). Here, the Court decided that an order indicating provisional measures of protection is binding on the parties to whom it is addressed and that a party’s failure to comply with the terms of such an order is an internationally wrongful act giving rise to a claim for reparation.
88 A request for the indication of provisional measures can be filed by either party at any time after the formal institution of the proceedings and before the final decision. These requests are handled by the Court as a matter of urgency. They have priority over all other cases, including the hearings and the deliberation in pending cases. Written pleadings are not essential in these proceedings but hearings are, the party making the request pleading first. The Court’s decision is usually in the form of an order with individual opinions if necessary. The Court does not need to be fully satisfied as to its mainline jurisdiction and can indicate provisional measures if it is satisfied that, prima facie, it would have jurisdiction over the merits, that the absence of jurisdiction is not manifest. The Court’s findings on facts or on prima facie jurisdiction are provisional pending full pleadings on the matter.
(c) Disputes over Jurisdiction; Pleas in Bar
89 Art. 36 (6) ICJ Statute provides that in the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court. Art. 79 ICJ Rules governs the procedure. If a plea of this nature is made early in the proceedings with the object of preventing pleading on the merits of the case, the plea has the character of a preliminary objection. Preliminary objection proceedings are commenced by the filing of a written objection. Normally, the respondent to the mainline case introduced by application initiates the objection proceedings in which the role of the parties to the principal case is reversed. In very exceptional circumstances, the formal applicant may institute these proceedings, and where the case is brought before the Court by notification of a special agreement, either party to that agreement. The adverse party is given an opportunity to reply in writing and then the case is ready for hearing. The hearings take their usual course. The essential characteristic of a preliminary objection is that the decision on it is requested before any further proceedings on the merits, and it is to be made as soon as possible and not later than three months after the delivery of the memorial. If made by a party other than the respondent (for instance, an intervening party), it is to be filed within the time limit fixed for the delivery of that party’s first pleading. With that, the proceedings on the merits are suspended. Normally, the Court’s decision is in the form of a judgment, which can accept or reject the objection or declare that the objection does not possess in the circumstances of the case an exclusively preliminary character. If the objection is rejected or if the decision declares that the objection does not possess an exclusively preliminary character, the proceedings on the merits are automatically resumed at the point at which they were suspended. However, the title of jurisdiction will, after that, include also, where relevant, the decision on the objection.
90 Cases have occurred in which the first phase in the proceedings was for the indication of provisional measures, which brought out the existence of doubts over the jurisdiction to decide the merits requiring settlement before proceeding to the merits. In these cases, the Court has ordered that the next phase should address the issues of jurisdiction and, if necessary, admissibility, and it has decided on the order in which the parties plead. It has also occurred that the parties wish these questions to be settled before there is any pleading on the merits. Art. 79 (2) ICJ Rules as amended in 2001 provides that following the submission of the application and after the president has met and consulted with the parties, the Court may decide that any questions of jurisdiction and admissibility ‘shall be determined separately’. This procedure is also used when it is clear at that early stage of the case that the respondent does not intend to appear, bringing Art. 53 ICJ Statute into play. These differ from preliminary objections in that they are not filed by either of the parties and they take place before any pleadings on the merits are filed, in that way separating the issues of jurisdiction and admissibility from any question on the merits.
91 Preliminary objections are not the only method of challenging the Court’s jurisdiction in a particular case. A second method is by raising a plea in bar. This allows the pleadings on the merits to continue but requires the Court to dispose of the plea before it makes its decision on the merits. The Court usually does this in a single judgment, with all the pleadings before it.
92 In principle, contentious international litigation is bilateral, between two parties, and only in exceptional circumstances can third parties be admitted to take part in a pending case (International Courts and Tribunals, Intervention in Proceedings). Two or more States may combine and take part in the case as a single party, as occurred in the Case of the Monetary Gold Removed from Rome in 1943 (Italy v France, United Kingdom and United States) (Monetary Gold Abitration and Case) in 1954. The ICJ Statute provides for two situations. Under Art. 62 ICJ Statute, should a State consider that it has an interest of a legal nature which may be affected by the decision in the case, it may submit a request for permission to intervene, and the Court will decide on that. This may be termed ‘discretionary intervention’. Under Art. 63 ICJ Statute, whenever the construction of a convention to which States other than those concerned in the case are parties, the registrar has to notify those States, which then have the right to intervene in the proceedings. If a State uses that right, the construction given by the judgment will be equally binding on it. This may be termed ‘intervention as of right’. This is amplified by Art. 43 ICJ Rules as amended in 2005. Dealing with the giving of notice to third States Parties to a convention to which States other than the parties are concerned, the amended rule requires the Court to consider what instructions should be given to the registrar. Taking account of modern treaty developments and the possibility that an international intergovernmental organization may be a party to a treaty or convention, the new rule goes on to provide that the Court shall also consider whether the registrar should give any notice to such an organization. Every public international organization so notified may submit its observations on the particular provisions of the convention the construction of which is in question in the case. It does this in the form of a memorial, and the parties to the case may be authorized to comment on it. This rule consolidates the little practice that the Court has had regarding this matter.
93 The procedure for intervention is amplified in Arts 80–86 ICJ Rules. Art. 80 ICJ Rules dealing with discretionary intervention requires these proceedings to be introduced by a formal application for permission to intervene. Under Art. 81 ICJ Rules, the State desiring to avail of the right of intervention has to file a declaration to that effect. After the appropriate instrument is filed, the two types of intervention follow a similar procedure. Art. 84 (2) ICJ Rules requires the Court to hear the State seeking to intervene and the parties before deciding on the admission of the intervention. This decision is customarily in the form of a judgment. If there is no objection, the Court decides the matter in an order which also prescribes the next steps in the proceedings.
94 There have been two case of discretionary intervention in the ICJ, one in a case being heard before an ad hoc chamber, the Land, Island and Maritime Frontier Dispute Case (El Salvador/Honduras: Nicaragua Intervening) (Judgment)  ICJ Rep 351), preceded by two procedural decisions ( ICJ Rep 3 and  ICJ Rep 92) and followed by an application for revision of the 1992 judgment ( ICJ Rep 392), and the second before the full court in the Land and Maritime Boundary between Cameroon and Nigeria Case (Cameroon v Nigeria) ( ICJ Rep 303), preceded by a procedural decision ( ICJ Rep 1029) (Land and Maritime Boundary between Cameroon and Nigeria Case; Land, Island and Maritime Boundary Dispute Case [El Salvador v Honduras]). In the first of these cases, which concerned a series of disputes relating to the land frontier as well as maritime delimitation issues, the intervention was limited to the maritime delimitation issues in which the intervening party had a recognized interest. In the second case the same limitation was set out in the request for permission to intervene. So far, the cases all concerned some form of maritime delimitation and there was no direct jurisdictional link between the State seeking to intervene and either of the parties. In other cases where the Court has rejected the intervention, it has nevertheless been careful on the merits to take into account possible third-party claims and limited its delimitation to sea that actually appertains to the parties in the case before it. Where the intervention was partially successful, the State concerned was admitted to the case as a ‘non-party intervener’ in relation to a gulf where that State, together with the two parties, was a co-riparian. The Court explained that the intervention was strictly limited to the particular issues relating to that gulf, that the intervening State did not become a party to the proceedings, and did not acquire the rights or become subject to the duties which attach to the status of a party under the ICJ Statute and ICJ Rules (Land, Island and Maritime Frontier Dispute Case [El Salvador/Honduras: Nicaragua Intervening]  ICJ Rep 351). When, later, one of the parties to that case instituted proceedings to revise the judgment, the intervening State had no special standing in the revision proceedings (which did not refer to that part of the original judgment concerning that gulf). The intervention in the Land and Maritime Boundary between Cameroon and Nigeria Case, which also related to the land frontier, was similarly limited.
95 The ICJ Statute does not mention counter-claims which are today regulated by Art. 80 ICJ Rules as amended in 2001. Under Art. 80 (1) ICJ Rules, the Court may entertain a counter-claim by the respondent only if it comes within the jurisdiction of the Court and is directly connected with the subject-matter of the applicant’s claim. A counter-claim must be made in the submissions of the counter-memorial. Where an objection is raised concerning the application of Art. 80 (1) ICJ Rules or whenever the Court deems it necessary, the Court shall take its decision after hearing the parties. If there is opposition when a counter-claim is filed, the Court has to take a decision. This normally takes the form of an order which, if positive, records the decision to admit the counter-claim ‘as such’. The words ‘as such’ refer to Art. 80 (1) ICJ Rules and indicate that the Court has found that the necessary link with the principal claim exists. In the instances in which this has occurred to date, the link was established by the fact that the counter-claim arose out of the same ‘factual complex’ as the principal case. Once admitted as such, the counter-claim is treated as much as possible as a new case, entering the principal case in the written proceedings at the stage of the counter-memorial. The counter-claim is pleaded in the same way and the respondent to the counter-claim, normally the applicant in the principal case, has the last word (limited to the counter-claim) in both the written proceedings and at the hearing. Objections to the jurisdiction in the form of pleas in bar are accepted in relation to the counter-claim (preliminary objections cannot be made in this type of case since the counter-claim itself is included in the counter-memorial and it is no longer possible to suspend the proceedings on the merits after the counter-memorial is filed). The judgment on the merits will also dispose of the counter-claim. It is sometimes difficult to distinguish between a counter-claim and a defence to the merits.
5. The Judgment
(a) In General
96 Arts 55–58 ICJ Statute are the major provisions regarding a judgment (Judgments of International Courts and Tribunals). A judgment must state the reasons on which it is based. All questions are to be decided by a majority of the judges present, and if there is an equality of votes, the presiding judge has a casting vote. The full contents of a judgment include the date on which it is read in open court; the names of the judges participating in it; the names of the parties; the names of the agents, counsel, and advocates; a summary of the proceedings (sometimes going under the French name of qualités); the parties’ submissions; a statement of the facts; the reasons in point of law; the operative provisions of the judgment (sometimes going under the French name of dispositif); the decision, if any, with regard to costs (not usually awarded in international litigation); the number and names of the judges constituting the majority; and a statement as to the text of the judgment which is authoritative (Art. 95 (1) ICJ Rules).
97 The Court’s deliberations take place in private and remain secret (Art. 55 ICJ Statute). They are governed by the Court’s resolution of 12 April 1976 on its judicial practice. Reduced to fundamentals, the deliberation consists of a phase in which the major issues are discussed and the general trend of the members’ opinions can be discerned, the preparation of the draft of the judgment or other decision by a drafting committee the composition of which is not divulged but which should include the president of the bench unless he dissents, and the adoption of the decision. A major change was made in Art. 95 ICJ Rules of 1978. Art. 95 (1) on the contents of a judgment (and for advisory opinions, Art. 107 ICJ Rules), requires the decision to indicate the number and names of the judges constituting the majority; it is left to the individual judge to decide whether to attach an individual opinion to the decision whether dissenting or not. After the text has been adopted, the Court decides which of the two language versions is authoritative, and in the Court’s publications, that version is printed on the verso page.
98 As a result of these provisions, a judgment of the ICJ in appearance is a combination of a civil law judgment composed after collegial deliberation in which all the judges hearing the case participate, followed by individual opinions, concurring or dissenting (or both), of individual judges who cannot agree to all or part of the reasoning of the decision or to the operative clause of the decision. The judgment itself is given anonymously in the name of the whole court.
(b) Interpretation of Judgment
99 The judgment constitutes a res iudicata within the confines of Arts 59, 60, and 61 ICJ Statute. Art. 59 prescribes that a judgment has no binding force except between the parties and in respect of that particular case. This is followed by Art. 60, which provides that the judgment is final and without appeal (International Courts and Tribunals, Appeals). However, in the event of a dispute as to the meaning or scope of the judgment, ‘the Court shall construe it upon the request of any party’ (Judgments of International Courts and Tribunals, Interpretation of). Proceedings in interpretation are governed by Art. 98 ICJ Rules. A request for interpretation may be made by unilateral application or by special agreement, and the instrument bringing the case for interpretation before the Court must indicate the precise point or points the meaning or scope of which in the judgment is or are in dispute. Under Art. 100 ICJ Rules, if the judgment to be interpreted was given by the Court, the request for interpretation shall be dealt with by the Court, and if by a chamber, then by that chamber. This could give rise to difficulties if the judgment was delivered by an ad hoc chamber (see Sec. B.4. above) and it is not possible to reconstitute it in its composition at the time of the judgment. The decision on the admissibility of a request for interpretation has to be in the form of a judgment, after which, if the case is admitted, it will take its normal course. Since the judgment is final and without appeal, a request for interpretation can only be accepted if it shows that a dispute exists as to the meaning or scope of the impeached decision. However, in cases of interpretation the admissibility of the request does not have to be decided in advance of the proceedings on the merits of the request, although normally the decision on admissibility and, if necessary, its extent is expressly included in the operative clause of the judgment on the interpretation.
(c) Revision of a Judgment
100 Under Art. 61 ICJ Statute, an application for the revision of a judgment (Judgments of International Courts and Tribunals, Revision of) may be made only when it is based upon the discovery of some fact of such a nature as to be a decisive factor, which fact was unknown to the Court and to the party claiming revision when the judgment was given, provided that such ignorance was not due to negligence. There is also a double time condition. The application for revision must be made at the latest within six months of the discovery of the new fact, and no application for revision may be made after the lapse of 10 years from the date of the judgment. A request for revision shall be made by application, and the decision on the admission of the request should be in the form of a judgment which should expressly record the existence of the new fact and, recognizing that it has such a character as to lay the case open to revision, declare the application admissible on this ground. These conditions are very strict, and in the few cases of revision that have come before it, the Court has given a narrow interpretation to the statute. In the ICJ Rules, except for the institution of the proceedings, interpretation and revision are treated together, and as in the case of interpretation, applications for revision are to be dealt with by the Court or by the chamber that rendered the original judgment.
101 Revision and interpretation have in common that both procedures address problems that relate, above all, to the operative provisions of the impeached judgment, especially cases of interpretation which have been brought before the Court by unilateral application (the case need not be so limited if it had been brought before the Court by the parties jointly). Indeed, all the interpretation and revision cases so far before either the PCIJ or the ICJ have arisen out of difficulties encountered in the course of complying with the original judgment. Caution is therefore needed in approaching these two procedures lest they should be found to be an attempt at procrastination on the part of the State making the request for interpretation or revision. Both interpretation and revision have to be reconciled with the principle that the impeached judgment is binding on the parties and is final and without appeal. The two procedures can easily come into conflict with the wider public interest that, once settled judicially, a dispute should not be re-opened save in exceptional circumstances. There is a widely accepted principle that it is in the public interest that disputes should be settled—interest reipublicae est ut sit finis litium. On the other hand, as is attributed to President Lincoln, nothing is settled until it is settled right.
(d) The Law Applied
102 Art. 38 ICJ Statute directs the Court, whose function is to decide in accordance with international law such disputes as are submitted to it, to apply: a) international conventions, whether general or particular (ie, whether multilateral and open to a large number of States or bilateral with two or only a few parties), establishing rules expressly recognized by the contesting States; b) international custom as evidence of a general practice accepted as law; c) the general principles of law recognized by civilized nations; and d) subject to the provisions of Art. 59 ICJ Statute (see Sec. D.5. (b) above), judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. This text, substantially identical to the draft proposed by the Advisory Committee of Jurists of 1920 is widely seen as a codification of the sources of international law. Reduced to its fundamentals, however, it reflects international law as it was conceived by the Western Allies in 1920. It is to be regarded more as a political statement than as a considered statement of the elements that make up international law. In 1974, the UN General Assembly included in the preamble to a resolution (adopted by consensus) on the role of the Court a statement recognizing that the development of international law may be reflected, inter alia, by declarations and resolutions of the General Assembly ‘which may to that extent be taken into consideration by the International Court of Justice’ (UNGA Res 3232 (XXIX) [12 November 1974]). In fact, on the basis of the maxim curia iura novit, the Court applies ‘international law’ as the majority of the day sees it, frequently, in order to rally a majority around a given decision with the minimum of doctrinal or theoretical considerations.
103 Art. 38 (2) ICJ Statute provides that Art. 38 (1) ‘shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto’ (Ex aequo et bono). This means that if the parties agree, the Court may suggest a change in the existing legal situation. It has nothing to do with the general place of equity in international law. This provision was not in the draft prepared by the Advisory Committee of Jurists. It was added in the political process that took place leading to the adoption in 1920 of the Protocol of Signature of the PCIJ Statute. There has been no instance yet of either the PCIJ or the ICJ being requested to render a decision on the basis of this provision of their respective statutes.
6. The Court’s Publications
104 Controlled transparency is an essential feature of present-day international litigation practice, and Art. 26 (1) (i) ICJ Rules regulates the registrar’s functions in this regard. The Court’s publications are similar to those of the PCIJ. They consist of an annual volume or volumes of reports of judgments, advisory opinions, and orders; the pleadings for each case; acts and documents of the Court; the yearbook (with separate English and French editions); and a valuable bibliography. A list of the publications, together with the Court’s annual report to the General Assembly (in the six official languages of the General Assembly), are available online. The ICJ is on a par with the ‘courts of record’ well known in common law jurisdictions. Today all the Court’s current documentation in its original language is placed on its website. Judgments and advisory opinions are posted shortly after their delivery.
E. Critique and Assessment
105 There are two levels of criticism of the work of the ICJ: a) criticism based on alleged inadequacies of the ICJ Statute, and b) criticism based on the Court’s practice and procedure. The first type of criticism is essentially political and, in the main, can be remedied by the political operation of amending the statute with palliative corrections provided by the Court. Criticism falling in the second category can be remedied by the Court, especially through changes in the ICJ Rules.
106 The principal criticism today of the ICJ Statute relates to its provisions limiting access to the Court to States (Art. 34 (1) ICJ Statute) and, in practice, to independent States. This criticism points in two directions. One calls for giving access to the Court to international intergovernmental organizations and, more particularly, to the UN. The need for this is partly recognized in Art. 34 (2)–(3) ICJ Statute regarding receipt by the Court of information presented to it by public international organizations and by the 2005 revision of Art. 43 ICJ Rules placing public international organizations on the same footing as third States (under Art. 63 ICJ Statute) in the event of the construction of a convention to which a public international organization is a party is in question. This is a matter of increasing importance as organizations of economic integration such as the European Union are becoming parties to major international treaties and conventions, although it is not limited to that. On the other hand, notwithstanding the persistence of this criticism, especially (but not exclusively) in academic circles, little attempt has been made to examine in depth the problems which any public international organization wishing to participate in any capacity in a contentious case involving a State would have to face. For instance, what organ of the organization would represent the organization in the litigation, how would its instructions be formulated? What about the composition of the bench in such a case, including the appointment of judges ad hoc? And what is the position of a State that is party to the litigation and is a member of the organization concerned? In this context, it may be noted that, so far, there is no public instance of a public international organization being thwarted in the performance of its tasks through its inability to take part in any capacity in international litigation in the ICJ involving a State. Likewise, there is no known attempt to analyse the problems involved in securing compliance by an international organization with any judgment delivered against it—a problem that encounters difficulties given the current majority voting practices of present-day international organizations. Clearly, any attempt to extend the right of access to the Court would require at least an amendment to the ICJ Statute and, possibly, in so far as concerns any international organization including the UN, the constituent instrument of the organization concerned, including the UN Charter. However, as seen in para. 61 above, in present circumstances, there is little likelihood of any such amendment being adopted.
107 The second direction of this criticism relates to the Court’s attitude towards communications sought to be made to it by non-governmental organizations (‘NGOs’). This criticism was especially severe after the two nuclear weapons advisory opinions of 1996 (Nuclear Weapons [Advisory Opinions]), both of which had largely been promoted in the World Health Assembly (World Health Organization [WHO]) and in the General Assembly by NGOs. While to some extent the possible participation of NGOs in advisory proceedings is a matter within the control of the Court, it is nonetheless necessary that the Court shields itself from all superfluous accretions to its already overcharged paperwork. However, in an attempt to meet that criticism, the Court introduced Practice Direction XII in 2004. This allows NGOs to submit a written statement in an advisory case, but such statements are not considered as part of the case file. They are to be treated as publications readily available and may accordingly be referred to by States in their statements to the Court. They are to be placed in a designated location in the Peace Palace and all States and intergovernmental organizations presenting written or oral statements will be informed of the location where the NGO statements may be consulted. Some see in this hesitant, if not grudging, acknowledgment of the growing importance of the work of NGOs in the international sphere. This is to be distinguished from the use of NGO materials included by a State in its pleadings as documentary proof and corroborative evidence in an appropriate case as occurred in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Judgment) ( ICJ Rep 168; Armed Activities on the Territory of the Congo Cases).
108 The main criticism of the Court (as opposed to its statute) relates to the heaviness of its procedure, especially the written pleadings, the long periods of time allowed to the parties to file their pleadings, the sometimes excessively long time that can elapse between the closure of the written pleadings and the opening of the hearing, the time that is required for the deliberations, and above all, the length of time sometimes required before the Court reaches a decision that it does not have jurisdiction to decide a case. However, very often, the reason for these long periods of time is the Court’s deference to the wishes of the parties, independent and sovereign States. Through changes in the ICJ Rules and through several of the Practice Directions, the Court has tried to accelerate the written proceedings and to shorten the oral pleadings, but it has not had much success. The accumulation of these misgivings and open hostility to the Court after the South West Africa: Second Phase in 1966 found painful expression in the settlement of dispute provisions of the UN Convention on the Law of the Sea and in the establishment of the ITLOS (although the ITLOS has some functions which the ICJ cannot perform under the current ICJ Statute).
109 As far as written pleadings are concerned, the Court does not attempt to interfere in any way in this phase of the case. There is no attempt to control how a country sets out its written case and what documents it annexes to any of its pleadings. For the Court to make any attempt to introduce any change in this order of things would imply a fundamental restructuring of the whole current concept of international litigation. Nevertheless, the increasingly heavy list of pending cases and the complexity of some of them would appear to require some form of limited intervention by the Court in the structure and content of a party’s written pleadings and a more active role for the Court in the early phases of a case before the hearings.
110 The Court’s case load in the 60 years of its existence (1946–2006) is markedly different and much more complex than the 20-year case load (1922–39) of the PCIJ. Aside from the relatively few ‘routine’ disputes essentially involving differences over matters of treaty law or the law of international responsibility (issues that can arise in any case), the major innovation in the case load of the ICJ relates to issues of territorial sovereignty involving not merely localized frontier revisions but the disposition of large stretches of territory with large populations whose human rights have also been a factor. The main cases of this category include the case between Honduras and Nicaragua technically questioning the validity of an arbitral award (in favour of Honduras) rendered by the King of Spain in 1906 (Arbitral Award Made by the King of Spain on 23 December 1906 [Honduras v Nicaragua] [Merits] [(1960) ICJ Rep 192]; the Frontier Dispute Case [Burkin Faso/Republic of Mali] [(1986) ICJ Rep 554]; the Territorial Dispute Case [Libyan Arab Jamahiriya v Chad] [(1994) ICJ Rep 6) (Territorial Dispute Case [Libyan Arab Jamahiriya Chad])] over the Aouzou Strip; and the Land and Maritime Boundary between Cameroon and Nigeria [Cameroon v Nigeria] [(2002) ICJ Rep 303]) (Land and Maritime Boundary between Cameroon and Nigeria Case [Cameroon v Nigeria]). These cases brought the Court into the field of the preservation of international peace, and in some of them, the co-operation of the Security Council and the Secretary-General of the UN and of the competent regional organization was required.
111 The Court has had a few major cases involving the interpretation and application of the UN Charter and relevant UN institutional arrangements and procedures, including the relations of the General Assembly and the Security Council and a series of advisory and contentious cases involving initially the League of Nations Mandate for South West Africa and the independence of Namibia. The Court’s handling of the contentious South West Africa Cases in particular provoked much dissatisfaction in many circles and caused serious prejudice to the Court’s standing. Another series of advisory and contentious cases involving the Convention on the Prevention and Punishment of the Crime of Genocide (Application of the Convention on the Prevention and Punishment of the Crime of Genocide Case; Genocide Convention, Reservations [Advisory Opinion]) and the relations of the ICJ with competent international criminal courts, and a series of cases technically involving the interpretation and application of the Vienna Convention on Consular Relations (1963) (596 UNTS 261) but indirectly relating to the imposition of corporal punishment in the US (Avena and Other Mexican Nationals Case [Mexico v United States of America]; LaGrand Case, Vienna Convention on Consular Relations [Paraguay v United States of America]) have come to be seen as important instances of successful judicial activity. Above all, there is a cluster of cases about different aspects of the law of the sea and in particular questions of maritime delimitation; recent examples include Maritime Delimitation and Territorial Questions between Qatar and Bahrain [Qatar v Bahrain]; Maritime Delimitation between Guinea-Buissau and Senegal [Guinea-Buissau v Senegal]; Maritime Delimitation in the Area Between Greenland and Jan Mayen [Denmark v Norway]; Delimitation of the Maritime Boundary in the Gulf Area [Canada v United States of America]). Here, the Court has made a major contribution to the development of the law in the different law of the sea conventions and to the stabilization of the written law after the conventions of 1958 and 1982.
112 The wide range of topics that have come before the ICJ has enabled it to make a major contribution to the evolution of international law in the rapidly changing conditions of the second half of the 20th century and the first decade of the 21st. Contributing to the development of the law is a by-product of the activity of every ‘senior’ court, and the ICJ is no exception. This is achieved in the nature of things, without any need for controversial theories of the binding force of judicial precedents, so dominant a feature of the Anglo-American common law, or of the ‘sources’ of international law (a misleading expression at the best of times), although the Court has emphasized the need for continuity and stability in its case-law. Here there is a mutual exchange between the Court and the International Law Commission (ILC), to the benefit of both.
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